Allstate Ins. Co. v. Campanella

• Decision Date: 20 March 2019
• Docket Number: 2016–12627,Index No. 80141/16
• Parties: In the Matter of ALLSTATE INSURANCE COMPANY, Respondent, v. Alexis CAMPANELLA, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 994

95 N.Y.S.3d 559

In the Matter of ALLSTATE INSURANCE COMPANY, Respondent,

v.Alexis CAMPANELLA, Appellant.

2016–12627

Index No. 80141/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 11, 2018

March 20, 2019

Leav & Steinberg, LLP (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs ], of counsel), for appellant.

Votto & Albee, PLLC, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law and the facts, with costs, the petition is denied and the proceeding is dismissed.

In 2013, the appellant was injured when, as a pedestrian, she was struck by an automobile. After arbitrating her claim against the tortfeasor, she served the petitioner, Allstate Insurance Company (hereinafter Allstate), with a demand to arbitrate a claim for underinsured motorist benefits pursuant to the supplemental uninsured/underinsured motorist insurance endorsement (hereinafter the SUM endorsement) of her father's automobile insurance policy with Allstate. Allstate commenced this proceeding for a permanent stay of arbitration, contending that the appellant did not qualify as an insured person under that policy because she was not a resident relative of her father's household at the time of the accident. After a hearing, the Supreme Court granted the petition and permanently stayed the arbitration. This appeal followed.

As the party seeking to permanently stay arbitration pursuant to the SUM endorsement of its insurance policy, Allstate bore the burden of coming forward with evidence establishing that the appellant was not a qualified insured person pursuant to the policy at issue (see Matter of Allstate Ins. Co. v. Esposito , 15 A.D.3d 648, 649, 791 N.Y.S.2d 125 ). At the hearing, Allstate presented evidence that the appellant was not a resident relative of her father's household at the time of the accident, and thus was not an eligible insured under the policy, by tendering a police accident report for the incident and certain other records. Those documents listed an address for the appellant on Amsterdam Avenue, Staten Island, which is different than the address for her father, on Lamont Avenue in Staten Island, which was listed on the policy.

Nonetheless, the Supreme Court's determination to stay arbitration, upon its finding that the appellant's connection to her father's home on Lamont Avenue was "ephemeral at best," is contrary to the weight of the evidence (see Matter of State Farm Mut. Auto. Ins. Co. v. LoBue , 151 A.D.2d 487, 487, 543 N.Y.S.2d 332 ). At the hearing, the appellant submitted evidence which showed that she had more than one residence for the purposes of automobile insurance coverage (see Matter of Progressive N. Ins. Co. v. Pedone , 139 A.D.3d 958, 959, 31 N.Y.S.3d 586 ; see also Matter of A. Cent....